In my September 26, 2014, post, B.C. Law Society abdicates self-governance in favour of non-governance, I argued the Law Society of British Columbia irresponsibly fettered its independent decision-making authority to an ultra vires plebiscite of rank-and-file lawyers on the issue of accreditation of a Christian law school that openly discriminates against LGBT candidates.
The LSBC went on to hold the referendum and, on October 31, 2014, voted that it was bound by the result, reversed its earlier decision of April 11, 2014 to grant accreditation.
Last Thursday, in its judicial review, the Supreme Court of British Columbia agreed that the Law Society had abdicated its responsibility. Chief Justice Hinkson set aside the October LSBC decision and reinstated the April one. In arriving at this conclusion, the Chief Justice held, at para. 152:
‘I find that the Benchers improperly fettered their discretion and acted outside their authority in delegating to the LSBC’s members the question of whether TWU’s proposed faculty of law should be approved for the purposes of the admissions program.’
Unsoundness of the April, 2014, Decision
It was unfortunate that the court did not really consider the April decision, too, for what it was. Those who heard the April speeches of the benchers voting in favour of accreditation will recall repeated references to the LSBC being bound by the 2001 Supreme Court decision in TWU v. BCCT, dealing with a refusal by the provincial regulator of teachers from accrediting a teachers college at the same university.
As a matter of administrative law, the Supreme Court ‘s decision in BCCT dealt with a distinct statutory framework. There, the College and the educational system was entirely answerable to a state regulator, and the Teaching Profession Act specifically fettered the College’s decision-making power. At para. 43 of the majority decision, Justices Iacobucci and Bastarache stated:
‘The order of mandamus was justified because the exercise of discretion by the BCCT was fettered byof the and because the only reason for denial of certification was the consideration of discriminatory practices. In considering the religious precepts of TWU instead of the actual impact of these beliefs on the school environment, the BCCT acted on the basis of irrelevant considerations.’
In other words, the BCCT acted wrongly by failing to fetter its power. The College had failed to confine itself to enumerated considerations, none of which included matters of discrimination. The courts overturned the BCCT because it failed to keep its decision-making confined to the state-regulated framework: the exact reverse of the regulatory environment of the LSBC. The fundamental principle of regulation of the legal profession in Canada is that law societies precede Confederation, and that statutes of continuation protect a zone of regulatory independence. These statutes do not dictate to the legal profession: rather, they protect an independent bar from the state dictating to it.
In its April vote, the LSBC felt bound to follow the same course as the BCCT. The Law Society therefore decided to grant accreditation based on a basic misunderstanding of its function. Unlike BCCT, the LSBC is entitled to decide on matters of entry to the legal profession within a zone of professional independence. The Law Society of Upper Canada, its counterpart in Ontario, got this right and exercised its deliberative jurisdiction to turn down the TWU request for accreditation. The only B.C. bencher who clearly understood this point was Sharon Matthews, Q.C., who said: “I say that simply saying because the 2001 TWU case was decided the way it was decided, is saying that our decision is essentially made for us. … I agree we have to apply the law, but we have to do it in a fulsome way, we have to do it as leaders, and we have to do it with courage.” (April LSBC Transcript, p. 34)
Thus, in B.C., the first decision to grant accreditation was wrongly decided, because the LSBC fettered its discretion by the decision-making constraints imposed on the BCCT.
The next time round, when deciding to hold the plebiscite and resolving to be bound by the vote, the LSBC fettered its discretion to the result of the vote.
The LSBC therefore achieved the rare distinction of making the wrong decision when it resolved in favour of accreditation, and then making the wrong decision in resolving to rescind accreditation. In each instance, the LSBC failed to be the possessor of its own mind. Much like an incompetent driver hitting the pedestrian and then running over him again by reversing to see what he hit.
A flawed administrative record
Whether or not one agrees with the above analysis, there is no escape from one fact. The record which most legal commentators believe will end up in the Supreme Court of Canada will be based, at least in B.C., on the legal regulator’s mishandling of its jurisdiction. Instead of a clean, jurisdictionally sound consideration of important issues surrounding religious rights and gender-based equality, the record emerging from the LSBC will be … well, bound in fetters.